Complainant,v.Dr. Rebecca Blank, Acting Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Feb 7, 2013

0120120985 (E.E.O.C. Feb. 7, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120120985

Hearing No. 550-2011-00208X

Agency No. 10-63-00971D

DECISION

Complainant filed an appeal from the Agency’s final order dated November 9, 2011, finding
no discrimination with regard to her complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In her complaint, dated May 24, 2010, Complainant, a former Assistant to the Assistant
Manager for Field Operations with the Waianae Local Census Office (LCO) #3249 at the
Agency’s Los Angeles Regional Census Center alleged discrimination based on race
(Caucasian) when she was accused of data falsification, denied a training opportunity, angrily
yelled at, and, ultimately, terminated for cause on March 19, 2010. Upon completion of the
investigation of the complaint, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On October 24, 2011, the AJ issued a decision without holding a
hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
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standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The AJ noted that Complainant’s job, as a Waianae LCO
field staff member, required her to gather and accurately report census data compiled through
field canvassing operations. This data and information, characterized as the daily field count,
was then submitted by the LCO to the Regional Office in Los Angeles. In March 2010,
Complainant’s manager received a notice from the Los Angeles Regional Office that a pattern
reflecting numerous discrepancies was found in the daily field count prepared and reported by
Complainant. The manager was further directed to investigate and determine the reason for
the discrepancies, and to take corrective action. Specifically, the manager stated that an
investigation was undertaken immediately due to the critical need to provide accurate Census
information and the time sensitive nature of the Census operation. After the investigation,
indicated the manager, it was determined that Complainant had been making numerous errors
in her data collection and reporting task. The manager stated that after her unsuccessful
attempts to correct Complainant’s performance, she decided to terminate Complainant. The
Program Coordinator for the Waianae LCO who was stationed at the Los Angeles Regional
Office acknowledged that during the relevant time period at issue, the LCO was having
significant problems with the over reporting of Census collection numbers when it reported its
daily numbers. The hard data from the Waianae LCO did not correlate with the daily numbers
from the operational control system.

With regard to training, the manager acknowledged that Complainant was denied her request
for Decennial Applicant, Personnel, and Payroll System (DAPPS) training. The manager
stated that Complainant was trained and worked within the operations department as a field
supervisor, whereas DAPPS was used by administrative human resources staff. The manager
indicated that during the relevant time period at issue the Waianae office was very busy and did
not have the time to train Complainant in additional duties such as DAPPS. The
Administration Regional Technician acknowledged that Complainant’s position did not require
her to access DAPPS information which was limited to upper management and administrative
staff members.

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Complainant claimed that on March 17, 2010, an identified individual angrily yelled at her in
front of other staff members. The AJ noted that although the individual admonished
Complainant in an inappropriate manner, it was related solely to her performance
shortcomings. The AJ indicated that the individual was known to be rude and unprofessional
to other employees, subordinates, and superiors, alike, regardless of their race. The AJ noted
that the individual was terminated later due to her serial acts of misconduct involving
interpersonal conflicts with her coworkers and superiors. Complainant’s manager indicated
her decision to terminate Complainant had no relevancy with the March 17, 2010 argument,
described above.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged actions including her
termination. With regard to her claim of harassment, we find that the AJ properly determined
that Complainant failed to establish the severity of the conduct in question or that they were
related to any protected basis of discrimination. Upon review, we find that Complainant failed
to show that she was treated less favorably than a similarly situated employee under similar
circumstances. Based on the foregoing, we find that Complainant has failed to show that the
Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
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of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

February 7, 2013
Date